Law Firm Chittur & Associates
CONCERNING: ACTIVE CASE - ISKCON Inc. Long Island - vs. - ISCON GBC Westbengal
Law Firm Chittur & Associates:
Defending the ISKCON, Inc., temple in Freeport, Long Island, and prosecuting counterclaims on its behalf, in an action by the ISKCON Governing Body Commission Society of West Bengal, India, to takeover that temple. After a week-long evidentiary hearing, the trial court denied the Society’s motion for a preliminary injunction for immediate takeover, which was largely upheld on appeal, Kelley v. Garuda. The ISKCON, Inc., temple in Freeport has asserted 7 counterclaims against the West Bengal Society for Passing Off, Fraudulent Interference With Goodwill; Conversion;
Aiding and Abetting Breach of Fiduciary Obligations; Aiding and Abetting Conversion; Concerted Action; and Civil Conspiracy. The counterclaims center on allegations that the West Bengal Society converted millions of dollars by misrepresenting itself as the ecclesiastical authority of the Krishna Consciousness movement, contrary to the founder’s instructions and will. These millions rightfully belong to ISKCON, Inc., of Freeport, Long Island, which is the sole beneficiary under the trust founded by ISKCON founder, His Holiness Srila Prabhupada, which trust was called the Bhaktivedanta Book Trust. In May 2010, the Referee supervising discovery censured the Plaintiff GBC for dilatory tactics, Kelley v. Doaman. The case is expected to go to trial later this year.
--------- Supreme Court, Appellate Division, Second Department, New York
Edward Kelley, Also Known as Adarsi Das, et al., Appellants
Aruna Garuda, Also Known as Aruna Devi Das, et al., Respondents.
January 9, 2007
CITE TITLE AS: Kelley v Garuda
Religious Corporations and Associations Determination of Claim to Real Property
In action to enjoin alleged trespass and usurpation of corporate authority, and for judgment declaring rights and interests of parties in plaintiff’s Temple, court erred in dismissing causes of action alleging trespass and usurpation of corporate authority as nonjusticiable; causes of action were based, essentially, on legal principles of corporate government and property; resolution of these issues hinged on determination of who owned and had authority over Temple and its grounds, Governing Body Commission of plaintiff or defendants; defendants failed to establish that court could not resolve these issues by applying neutral principles of law to analyze deed to property, certificate of incorporation of plaintiff, terms of bylaws, and documents submitted by parties, and evaluating parties’ credibility.
In action to enjoin alleged trespass and usurpation of corporate authority, and for judgment declaring rights and interests of parties in plaintiff’s Temple, court erred in denying in its entirety plaintiffs’ motion for preliminary injunction; court’s finding that plaintiffs had not established likelihood of success on merits was based on its erroneous determination that trespass and usurpation of corporate authority causes of action were nonjusticiable; plaintiffs would suffer irreparable injury should defendants sell, mortgage or otherwise encumber property of plaintiff, including Temple, and injunction on such action was necessary so as to preserve status quo.
Steven M. Lester, Garden City, N.Y. (Jean M. Smyth and Edward McGlynn Gaffney, Jr., of counsel), for appellants. Chittur & Associates, P.C., New York, N.Y. (Krishnan S. Chittur of counsel), for respondents Aruna Garuda, a/k/a Aruna Devi Das, and Viswa Garuda.
In an action to enjoin an alleged trespass and usurpation of *594 corporate authority, and for a judgment declaring the rights and interests of the respective parties in the temple of the plaintiff International Society for Krishna Consciousness, Inc., in Freeport, the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Mahon, J.), dated October 25, 2004, which denied their motion for a preliminary injunction enjoining the defendants from, inter alia, selling, mortgaging, or otherwise encumbering the property of the plaintiff International Society for Krishna Consciousness, Inc., including the temple, and (2) so much of an order of the same court also dated October 25, 2004, as granted those branches of the defendants’ motion which were to dismiss the first and second causes of action.
Ordered that the order dated October 25, 2004, which denied the motion for a preliminary injunction, is modified, on the law, by deleting the provision thereof denying that branch of the motion which was to enjoin the defendants from selling, mortgaging, or otherwise encumbering the property of the plaintiff International Society for Krishna Consciousness, Inc., including the temple, and substituting therefor a provision granting that branch of the motion; as so modified, that order is affirmed; and it is further,**2
Ordered that the order dated October 25, 2004 granting those branches of the defendants’ motion which were to dismiss the first and second causes of action is reversed insofar as appealed from, on the law, and those branches of the motion are denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
This case involves a property dispute between two factions affiliated with the Long Island Hare Krishna Temple located in Freeport (hereinafter the Temple). The individual parties are members of the International Society for Krishna Consciousness, Inc. (hereinafter ISKCON), a New York religious corporation incorporated in 1966. The property at issue is located at 197 South Ocean Avenue in Freeport and was acquired by ISKCON in 1980.
The Supreme Court granted those branches of the defendants’ motion which were to dismiss the first and second causes of action, alleging trespass and usurpation of corporate authority, respectively, finding that, in both causes of action, the plaintiffs had “intertwined the issue[s]” with allegations of heretical practices on the part of the defendants. The court concluded that the causes of action were not justiciable, as any action on them would entail violating the establishment and free exercise clauses of the First Amendment. The Supreme Court erred in its conclusion and in dismissing the two causes of action. *595
The United States Constitution prohibits the courts from resolving “controversies over religious doctrine and practice” (Presbyterian Church in U.S. v Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 US 440, 449 ; see Park Slope Jewish Ctr. v Congregation B’nai Jacob, 90 NY2d 517, 521 ; First Presbyt. Church of Schenectady v United Presbyt. Church in U.S. of Am., 62 NY2d 110, 116 , cert denied 469 US 1037 ). “Such rulings violate the First Amendment because they simultaneously establish one religious belief as correct for the organization while interfering with the free exercise of the opposing faction’s beliefs” (First Presbyt. Church of Schenectady v United Presbyt. Church in U.S. of Am., supra at 116). Nevertheless, the United States Supreme Court has recognized that “there are neutral principles of law, developed for use in all property disputes, which can be applied without ‘establishing’ churches to which property is awarded” (Presbyterian Church v Hull Church, supra at 449; see Jones v Wolf, 443 US 595, 602-603 ; cf. Matter of Congregation Yetev Lev D’Satmar, Inc. v Kahana, 31 AD3d 541 ).
Here, both sides attempted to engage the court in a dispute over church doctrine and practice. However, in evaluating a motion under CPLR 3211, where, as here, evidentiary material has been considered by the court, “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 ; see Leon v Martinez, 84 NY2d 83, 88 ). Despite some language in the pleadings and much argument in the motion papers on religious matters, the causes of action alleging trespass and usurpation are based, essentially, on legal principles of corporate government and property. Resolution of these issues hinges on a determination of who owns and has authority over the Temple and its grounds, the Governing Body Commission of ISKCON or the defendants. The defendants failed to establish that the court could not resolve these issues by applying neutral principles of law to analyze the deed to the property, the certificate of incorporation of ISKCON, the terms of the by-laws, and the documents submitted by the parties, and evaluating the parties’ credibility when they testify as to the circumstances surrounding the acceptance of the bylaws, the elections, and the rest of the documents (see Presbyterian Church v Hull Church, supra at 449; First Presbyt. Church of Schenectady v United Presbyt. Church in U.S. of Am., supra at 122; **3Matter of Venigalla v Alagappan, 307 AD2d 1041, 1042 ; Matter of Kissel v Russian Orthodox Greek Catholic Holy Trinity Church of Yonkers, 103 AD2d 830 ). There is no merit to the defendants’ alternative grounds for dismissal of the causes of action. *596
The court improvidently exercised its discretion in denying in its entirety the plaintiffs’ motion for a preliminary injunction. Parties seeking a preliminary injunction must “show a probability of success, danger of irreparable injury in the absence of an injunction, and a balance of the equities in their favor” (Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 ; see Church of God Pentecostal Fountain of Love, MI v Iglesia de Dios Pentecostal, MI, 27 AD3d 685, 686 ). “The purpose of a preliminary injunction is to maintain the status quo pending determination of the action” (Coinmach Corp. v Alley Pond Owners Corp., 25 AD3d 642, 643 ).
The court’s finding that the plaintiffs had not established a likelihood of success on the merits was based on its erroneous determination that the trespass and usurpation of corporate authority causes of action were nonjusticiable. It is clear that the plaintiffs would suffer irreparable injury should the defendants sell, mortgage, or otherwise encumber the property
of ISKCON, including the temple, and that an injunction on such action is necessary so as to preserve the status quo (see Church of God Pentecostal Fountain of Love, MI v Iglesia de Dios Pentecostal, MI, supra; Coinmach Corp. v Alley Pond Owners Corp., supra).
The plaintiffs’ remaining contentions are without merit. Mastro, J.P., Florio, Fisher and Dillon, JJ., concur. Copr. (c) 2007, Secretary of State, State of New York.
Spin Doctor Gupta Spinning Again
BY: NIMAI PANDIT DAS
Jan 09, LONG ISLAND, NEW YORK, USA (SUN) — Yesterday's article by Gupta claiming that the BBT lawsuit has been dismissed has yet again exposed how he "spins" the news for the benefit of his paymasters, the ISKCON GBC of West Bengal Society. "Spins" mean he takes part of the truth and gives it a "twist" for his and his masters' benefit as part of their propaganda. But we thank Gupta das for bringing this issue on the forum so that the real issues can be discussed, yet again. As Srila Prabhupada says "Any news is good news".
1st Spin of Spin Doctor Gupta: "a California court judge dismissed the lawsuit"
Truth: The judge on the first hearing "Dismissed without prejudice" ISKCON, Inc.'s petitions. "Without Prejudice" is a standard legal term that means the claims of ISKCON, Inc. were not dismissed, but a technicality in the filing has to be sorted out and then the petitions will be filed again. Soon... No worries.
Question: Why didn't Gupta mention the all-important "without prejudice" part? A vast difference, and a little twist for a master spin. Why? To cause confusion and alarm among the vast number of devotees and supporters looking at this action with hope to restore the BBT and see the BBT printing only Srila Prabhupada's original books.
2nd spin of Spin Doctor Gupta: "filed against the BBT"
Truth ISKCON, Inc.'s petitions are not filed against the BBT. They are filed against the Trustees who have been mismanaging the BBT. A vast difference again. This endeavor is to restore the BBT so that it can again print only Srila Prabhupada's original books, so that the BBT can again own the copyrights Srila Prabhupada put in it, which the BBTI has stolen, and so that the BBT can be made operational as Srila Prabhupada instructed. There is not even a bank account of BBT. Hence, the BBT Trustees have been sued.
Also, BBTI has been sued for stealing the copyrights and trademarks of the BBT. Same with Bhaktivedanta Book Publishing Inc., that diverts all the money sent in the name of the BBT into its own Los Angeles bank account. Also the Archives, for keeping Srila Prabhupada's original paraphernalia, which should legally belong to the BBT.
Question: Why does Gupta not focus on the mismanagement of the BBT BY THE TRUSTEES and BBTI that is the focus of the lawsuit? Why try to portray this endeavor as an attack on the BBT? The BBT is holy, why should one attack the BBT? This kind of spin is a diabolical attempt to rile the masses against the endeavor to establish the Truth for the pleasure of Srila Prabhupada. In debating circles it is called "flag waving".
3rd Spin of Spin Doctor Gupta: "by Nimai Pandit's version of ISKCON Inc., a New York corporation", "The lawsuit was premised on the altogether outrageous legal assertion that the sole beneficiary of the 1972 California trust (BBT) formed by Srila Prabhupada is the ISKCON Inc. controlled by a small band of hopefuls led by Nitai Pandit, rather than ISKCON worldwide. Yet an unmotivated reading of the trust instrument along with a review of Srila Prabhupada's statements and actions on this point overwhelmingly evidence his unequivocal desire for ISKCON worldwide to benefit from his writings and other works. As a trust interpretation issue, I'd have to say that this would not be considered a close call."
Truth: Let us hear from Gupta himself in 1997 what his "unmotivated reading of the trust instrument" portrayed to him then:
"Based upon the language of the Trust Instrument, the INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, Inc., a New York corporation, was the intended beneficiary of the Bhaktivedanta Book Trust."
(Gupta Das on July 7th, 1997 in Los Angeles)
Now, let us see below if it is Nimai Pandit's version, or Srila Prabhupada's!
Srila Prabhupada writes in the BBT Trust Instrument document dated May 29th, 1972:
"This trust is created and shall be operated exclusively for the benefit of the INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, incorporated by me, and qualified as a tax-exempt religious organization under the provisions of the Internal Revenue Code, and specifically for the Book Fund and Building Fund activities hereinafter set forth in particular."
ISKCON, Inc. is designated as the legal entity beneficiary by Srila Prabhupada. The trust is also formed "and specifically for the Book Fund and Building Fund activities hereinafter set forth in particular."
These activities are delineated by Srila Prabhupada further in the Trust Instrument, as well as demonstrated by him in practice.
"The Trustees shall collect all proceeds from the sale of my books, that is One Hundred Percent (100%) of all the proceeds from all of the International Society for Krishna Consciousness Temples and divide these proceeds into two funds, one-half (1/2) for the fund known as the Book Fund, and one-half (1/2) for the fund known as the Building Fund.
The proceeds allocated to the Book Fund shall be used for the following purposes, all in the discretion of the Trustees, in whom I have complete confidence: Printing and reprinting of books;
Directing and managing all publicity and
distribution of my books;
Processing all copyrights and legal rights
to my books;
Allocating funds as they see fit to ISKCON
Press and directing the operation of the
activities of ISKCON Press in the printing
and reprinting of said books.
Those funds allocated to the Building Fund shall be applied in the sole discretion of the Trustees in the following manner:
Purchase of properties for the construction
of new temples or renovation of old temples."
Hence, there is no dichotomy. The legal beneficiary of the Trust is ISKCON, Inc., Srila Prabhupada's society incorporated by himself in New York in 1966, and that includes furthering the activities of the Book Fund and the Building Fund, as delineated by him above.
Question: But where is the BBT now? Where is it functioning? Where is its bank account? Where are its Book Fund and Building Fund? Where are its copyrights? Why not focus on the issues with the way the BBT is being mismanaged now? Why try to find a non-existent technical fault to oppose these all-important issues of the BBT from being resolved so that the BBT can be restored to be managed as Srila Prabhupada desires it?
Why not instead ask the BBT Trustees and the BBTI directors - "Why are Srila Prabhupada's books being changed? Why are the copyrights not in the BBT? Why are they owned by BBTI? Why is there no bank account of BBT? Why is all the money of the BBT put into the BBP? Why is Srila Prabhupada mentioned as "worker for hire" on the copyright records of his own books? Why are changed books being printed by BBTI, under the logo of BBT? Where is the 50% for books and 50% of temples arrangement instructed by Srila Prabhupada? What is happening to the dwindling books sales from the banner of BBT? Why is the BTG not printed as a Sankirtan monthly magazine anymore?"
Shows his loyalty!
4th Spin of Spin Doctor Gupta: "It appears that similar motivated reasoning now also fuels litigation by Nimai Pandit's band of hopefuls in New York. There the claims revolve around similarly twisted assertions, most notably that the present GBC of ISKCON is not the 'real' GBC in spite of almost four decades of continuity, identity, function and authority. It doesn't take much insight to come to the conclusion that the illegitimate GBC theory will soon go the way of the ISKCON Inc. sole beneficiary theory."
Truth: 1. ISKCON, Inc.'s endeavor has worldwide support. It is not "a band of hopefuls" that Gupta hopes it will be limited too. This will be made clear during the trial.
2. The lawsuit in New York was filed by Adarsi and "GBC" almost 5 years back to remove us from the Long Island temple. At that time, we had 10 Sankirtan devotees going out every day in New York distributing books and chanting. Even by attacking physically as a mob several times, expending massive amounts of funds (more than $1 million) on lawyers, the North American "GBC" members of ISCKON West Bengal GBC Society, backed by Gupta and Gopal Bhatta and Romapada Swami, have not been able to remove us from the temple. If it was so straightforward a deal as Gupta tries to make it appear, then why is it taking more than 5 years to remove us? All they have managed to do is to disturb the Sankirtan devotees in the temple so as to STOP the daily Sankirtan in New York. Maybe Gupta should ask Romapada Swami if he has managed to place a replacement daily Sankirtan in the streets of New York... What has been their gain for furthering the mission of Srila Prabhupada and saving the conditioned souls by filing the lawsuits against the devotees at the Long Island temple? What are the motives of Gupta in supporting them?
3. "Illegitimate GBC theory" is rooted in the creation of the GBC mandating it be elected every three years from among the Temple Presidents by the Direction of Management given by Srila Prabhupada on July 28, 1970. Later he decided to appoint and remove GBC's himself while he was present. But after his absence, in 1978, the GBC's should have organized the election from among the Temple Presidents, as directed in their founding document, the Direction of Management. They did not. Instead they declared some of themselves to be Initiator Gurus for respective Zones. And the rest is history.
Moreover, soon the unincorporated GBC body also became defunct. No meetings, nothing. A different entity called the West Bengal ISKCON GBC Society was formed in 1993 that started using the ISKCON GBC name, and it has been controlling the temples since then by misrepresenting itself as Srila Prabhupada's GBC. In the New York case, there are serious flaws and lies by this West Bengal Body -- so much so that the Judge has ruled twice that there is no likelihood of success on their merits while denying their temporary injunctions.
The gradual progressive publication of all their filings will lay bare the fix they are in and the lies they have been giving. Watch the Sampradaya Sun and www.IskconToday.org for updates.
5th Spin of Spin Doctor Gupta: "From my point of view as a practicing attorney, most of these strained claims are based on trying to squeeze broad, idealized spiritual interpretations into a circumscribed and limited legal reality. Courts even recognize this dynamic and refuse to enter into any fray which involves the interpretation of religious doctrine. This may well be why Srila Prabhupada himself avoided the legal wrangling associated with the Gaudiya Math, which entangled so many of his Godbrothers."
Truth: 1. Gupta is a practicing attorney paid for by "GBC" of West Bengal and BBTI at least the last 10 years. Hence, his "opinions" are naturally skewed. He got the $350,000 settlement money from the Hansadutta case in 1998 from the BBTI, as per the California Bar Association's records, while they suspended him in 2004.
FROM THE CALIFORNIA BAR JOURNAL - November 2004:
JOSEPH FEDOROWSKY [#133200], 53, of Marina del Rey was suspended for six months, stayed, placed on two years of probation with an actual 30-day suspension and was ordered to take the MPRE within one year. The order took effect June 18, 2004.
Fedorowsky stipulated that he breached his fiduciary duty to an associate of his client by using some of the associate's money for legal fees owed by the client...... He settled the matter favorably, winning among other things payment of $350,000 for legal fees.
One can read the whole suspension order here.
This money was gotten by Book Distributors around the world toiling hard for Srila Prabhupada, and since then he has been continuously employed by "GBC" of West Bengal in the child abuse case and for BBTI enforcing of their stolen copyrights.
Question: Why does he not state his past employments and the money received before trying to portray himself as a "neutral legal expert"?
2. Both the BBT and the New York cases are not religious doctrine cases. "Neutral principles of law" will be applied by the judge. That means discussion of "religious ecclesiastical" doctrine will not be entertained. The trial and judgments are to be based on "neutral" documents like the Trust Deed, incorporation documents, Bylaws, titles, copyright records etc. That is the finding of the judge, as Gupta himself says below.
Read his interview below to see that the contentions he was raising in 1998 are the very same that we are raising now -- they were not solved in the 1998 case, as he settled with the BBTI before that could be accomplished and pocketed the $350,000 settlement money. This money was gotten from the sweat of worldwide dedicated Sankirtan devotees distributing Srila Prabhupada's books. And then he turned around and started working for BBTI. Hence we have been forced to raise our voice and our purpose. And now -- he is opposing the same purposes he was propagating back in 1988. Read below. As Srila Prabhupada says "Just see the fun!"
Court Guts BBTI Case
October 29, 1998
VNN has learned that in ruling on cross motions for summary judgment on October 27, 1998, the California Superior Court Judge in the BBT-International, Inc., and ISKCON of California, Inc. vs. Hans Kary case has thrown out the Plaintiffs argument that the Court should defer to the GBC on matters regarding the Bhaktivedanta Book Trust, its trustees and ownership to the copyrights to Srila Prabhupada's books.
In an interview with VNN Joseph Fedorowsky (Gupta das), the lawyer representing Hansadutta, Bhagavan, Veda Guhya Das and Das Das Anu Das Devi Dasi, explained:
VNN: How does the Court ruling affect your clients' effort to validate Srila Prabhupada's original BBT?
Gupta: This ruling now guarantees that the Court will apply "neutral principles of law developed for use in all property disputes" in adjudicating the trust and contract issues being litigated in this case and that the Court will not entertain any of the Plaintiffs' ecclesiastical arguments.
VNN: Can you elaborate?
Gupta: The court formally rejected the attempt by the Plaintiffs' BBT-International Inc and ISKCON of California Inc, to hide behind the skirts of the First and Fourteenth Amendments -- which, if allowed, would have prevented the Court from questioning decisions made by the GBC and ISKCON as regards the BBT, its trustees and the ownership of Srila Prabhupada's books.
VNN: How does that help validate the BBT?
Gupta: That paves the way for the Court at trial to validate the existence of the original Bhaktivedanta Book Trust formed on May 29, 1972, by applying California trust law as well as to invalidate the bogus assignment of copyrights in Srila Prabhupada's books to the BBT-International, Inc., by applying simple contract principles of law.
VNN: Does the Court's decision directly affect the BBT International Inc's present claim to ownership of the copyrights to Srila Prabhupada's books ?
Gupta: In my opinion, the Court's ruling effectively guts that claim because the documentary evidence clearly proves the formation and viability of Srila Prabhupada's original irrevocable California charitable trust referred to by devotees throughout the world as the "Bhaktivedanta Book Trust." In addition, the ruling removes the basis for Plaintiffs' smoke and mirrors assertion that the copyrights were legally "assigned" to the BBT International Inc., which is actually just a private holding corporation -- not a trust.
VNN: But what about the argument that the GBC has authority over the BBT and the BBT Trustees and could therefore authorize or direct the transfer of the copyrights into the BBT International Inc?
Gupta: That argument is now gone -- and for good reason. Srila Prabhupada set up a perfect arrangement as regards the separation between the BBT and the GBC. In the original 1970 Direction of Management, His Divine Grace stated: "I am setting up a different body of management known as the BHAKTIVEDANTA BOOK TRUST. The trustees of this body are also members of the GBC, but their function is not dependent on the GBC." Then in the May 29, 1972, BBT California trust document, His Divine Grace stated: "This trust shall exist independently of ISKCON and the Trustee's function and duties stated herein shall be separate and not dependent on the Governing Body Commission of ISKCON." I don't know if anyone could have said it more clearly.
VNN: So where does the case go from here?
Gupta: Unless the Plaintiffs voluntarily accept the legal and spiritual reality of Srila Prabhupada's original BBT, which holds His copyrights, as legally separate and distinct from the publishing activities of ISKCON, a two week court trial will begin on November 30, 1998.
VNN: Last question - Why shouldn't the BBT International Inc and ISKCON of California Inc go to trial on these issues?
Gupta: The number one reason is to follow the clear instructions of Srila Prabhupada as expressed in the BBT Agreement in order to keep his copyrights safe and beyond the manipulation or control of any third party, which specifically included the GBC. The second reason is that going to trial will mean the unnecessary expenditure by the Plaintiffs of some $100,000 or more additional ISKCON dollars to contest the clearly expressed desire of His Divine Grace. And the third reason is that if at all possible, issues dealing with Srila Prabhupada's Vani should take place on a cooperative spiritual basis and not between contentious litigants in the legal arena. Perhaps when we all accept that principle a new Chapter in the history of the Hare Krishna Movement will have officially begun.